Belling the partisan cats: Preliminary thoughts on identifying and mending a dysfunctional constitutional order

Boston University Law Review

Volumn 94, Issue 3, 2014, Pages 611-647

  Graber, Mark A ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 84903747973     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (133)

1. See SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 23-24 (2006) (discussing the inability to achieve needed constitutional reforms through textually defined mechanisms, and how this inability creates a necessity for external reforms)
2. LARRY J. SABATO, A MORE PERFECT CONSTITUTION: IDEAS TO INSPIRE A NEW GENERATION 225-32 (2007) (arguing that constitutional reform must come from methods such as mock and actual constitutional conventions, as well as internet debate, while discussing how political gridlock makes congressional amendments implausible and proposing twenty-three reforms to improve constitutional functionality).
3. See SANFORD LEVINSON, FRAMED: AMERICA'S FIFTY-ONE CONSTITUTIONS AND THE CRISIS OF GOVERNANCE 391-93 (2012) ("We need a new constitutional convention, one that could engage in a comprehensive overview of the U.S. Constitution and the utility of many of its provisions to twenty-first century Americans." Id. at 391.)
4. Akhil Reed Axnar, Philadelphia Revisited: Amending the Constitution Outside of Article V, 55 U. CHI. L. REV. 1043, 1044-46 (1988) ("I believe that the first, most⋯ important, if unenumerated, right of the People is the right of a majority of voters to amend the Constitution - even in ways not expressly provided for in Article V.").
5. RICHARD LABUNSKI, THE SECOND CONSTITUTIONAL CONVENTION: HOW THE AMERICAN PEOPLE CAN TAKE BACK THEIR GOVERNMENT 6 (2000). Specifically, Lubinky argues: [T]hrough new communication technology such as the Internet, and more traditional forms of mass media, the American people can organize a series of meetings-beginning at the congressional district or county level, then moving on to a state convention, and finally culminating in a national 'preconvention' in Washington, D.C - where petitions can be written to give to state legislators⋯ [which] will propose a subject area for a constitutional amendment and will ask legislators to forward them to Congress⋯. Prior to the Internet, such an undertaking would have been almost impossible. Id.
6. See AESOP, The Mice in Council, in AESOP'S FABLES 2 (V.S. Vernon Jones trans., Avenel Books 1912) (1484).
7. For example, members of the convention might agree on a number of constitutional roundabouts that neutralize the baneful influence of such constitutional provisions as the Electoral College and state equality in the Senate. See Vikram David Amar, Rewriting the Constitution's Basic "Structural" Provisions: When a Constitutional Convention for Electoral Change Is Necessary, and What It Might Be Expected to Accomplish, 7, ELECTION L.J. 245, 248-51 (2008) (discussing the limitations of proposed reforms to electoral politics and Supreme Court terms that stem from entrenched partisanship and federalism).
8. see also ROBERT A. DAHL, HOW DEMOCRATIC Is THE AMERICAN CONSTITUTION? 73-120 (2d ed. 2003) (discussing the history of the Electoral College, "inherent democratic defects" in the electoral process, and constitutional responses to the problems of representation and democratic participation).
9. See Sanford Levinson, What Are We to Do About Dysfunction? Reflections on Structural Constitutional Change and the Irrelevance of Clever Lawyering, 94 B.U. L. REV. 1127, 1131-33 (2014) (outlining a broad argument covering two of Levinson's own books regarding the need for a constitutional convention to address inexorable deficiencies in the current Constitution that make needed reform within its confines impossible).
10. Sanford Levinson, How I Lost My Constitutional Faith, 71 MD. L. REV. 956, 972 (2012) (drawing the connections between constitutional structure, dysfunction, and public dissatisfaction with government institutions).
11. STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920, at 285 (1982) ("Whether a given state changes or fails to change, the form and timing of the change, and the governing potential in the change - all of these turn on a struggle for political power and institutional position, a struggle defined and mediated by the organization of the preestablished state."). Quentin Skinner's observation that all revolutionaries "march backwards into battle" points to the fact that new constitutional orders are fashioned through the median of the ancient regime, even when the transition is not peaceful.
12. 1 QUENTIN SKINNER, VISIONS OF POLITICS: REGARDING METHOD 149-50 (2002) ("[H]owever revolutionary such ideologists may be, they will nevertheless be committed, once they have accepted the need to legitimize their actions, to showing that some existing favourable terms can somehow be applied as apt descriptions of their behaviour. All revolutionaries are to this extent obliged to march backwards into battle.").
13. See RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM 11 (2004).
14. Cf. Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 446-50 (1987) (discussing how agencies created during the New Deal Era were designed to blend government functions previously kept discrete under separation of powers jurisprudence, using administrative safeguards against factionalism).
15. See 2 HOWARD GILLMAN ET AL., AMERICAN CONSTITUTIONALISM: RIGHTS AND LIBERTIES 480, 482 (2013).
16. See MARK A. GRABER, A NEW INTRODUCTION TO AMERICAN CONSTITUTIONALISM 144-72 (2013).
17. RICHARD HOFSTADTER, THE IDEA OF A PARTY SYSTEM: THE RISE OF LEGITIMATE OPPOSITION IN THE UNITED STATES, 1780-1840, at 40-41, 64-73 (1969) (describing how modern political parties gained popularity as their sophistication, discipline, and ability to connect with expanding electorates increased).
18. See ZACHARY ELKINS ET AL., THE ENDURANCE OF NATIONAL CONSTITUTIONS 129-31 (2009) (analyzing the creation and dissolution of nearly every national constitution since 1789 in order to evaluate information such as the average durations and lifespans of constitutions).
19. See BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS: JEFFERSON, MARSHALL, AND THE RISE OF PRESIDENTIAL DEMOCRACY 3-8 (2005) (outlining the electoral problems of the 1800-1801 election that necessitated reform of the 1787 Constitution).
20. See Michael W. McConnell, The Forgotten Constitutional Moment, 11 CONST. COMMENT. 115, 122-40 (1994) (detailing the Civil War Amendments, political and Supreme Court responses, and the subsequent dismantling of civil rights legislation at the end of the nineteenth century).
21. See generally Mark A. Graber, Constructing Constitutional Politics: The Reconstruction Strategy for Protecting Rights (unpublished manuscript) (on file with author) (discussing the context and history of the post-Civil War amendments).
22. See Eivind Smith, Introduction, in CONSTITUTIONAL JUSTICE UNDER OLD CONSTITUTIONS, at xi, xix (Eivind Smith ed., 1995) ("Countries in which old constitutional texts are subject to judicial enforcement are especially bound to live with a considerable gap between the philosophical and political concepts of the framers and those prevailing today.").
23. Reva B. Siegel, Foreword: Equality Divided, 127 HARV. L. REV. 1, 83 & n.421 (2013) (arguing in the context of gay marriage that messaging used in constitutional debates shifts from negative to positive in order to recharacterize arguments while still retaining fundamental perspectives).
24. Compare 1 HOWARD GILLMAN ET AL., AMERICAN CONSTITUTIONALISM: STRUCTURES OF GOVERNMENT (2013) (dividing the period between 1800 and 1960 into five constitutional eras)
25. ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT (3d ed. 2000) (dividing the period between 1800 and 1960 into three constitutional eras).
26. Bruce E. Cain & Roger G. Noll, Malhabile Constitutions: Reflections on State Constitutional Reform, 87 TEX. L. REV. 1517, 1517 (2009) (indicating that state constitutions change more often than the U.S. Constitution does due to less stringent requirements to effect changes).
27. See LEE HARGRAVE, THE LOUISIANA STATE CONSTITUTION: A REFERENCE GUIDE 12-13 (1991) ("The 1913 document⋯ included the 66 amendments to the 1898 Constitution that had been adopted in the intervening years⋯. In the process of incorporating the amendments, the drafters also revised some provisions and added a few others⋯. These few changes, however, were annulled by the [state] supreme court.").
28. See Stephen L. Elkin, The Constitutional Theory of the Commercial Republic, 69 FORDHAM L. REV. 1933, 1943-49 (2001) (discussing the relationship between political institutions and constitutional regimes, as seen through institutional action and political transformation).
29. See GARY JEFFREY JACOBSOHN, CONSTITUTIONAL IDENTITY 1-33 (2010) (explaining why constitutional identity and "dissonance within and around the constitution" are central to understanding constitutional dysfunction).
30. Abraham Lincoln, "A House Divided": Speech at Springfield Illinois (June 16, 1858)
31. reprinted in 2 THE COLLECTED WORKS OF ABRAHAM LINCOLN 461, 461 (Roy P. Basler ed., 1953).
32. MARK A. GRABER, DRED SCOTT AND THE PROBLEM OF CONSTTTUTIONAL EVIL 105-06 (2006) (describing how the Framers structured the Constitution and the balances of power it prescribes to delay a national debate over slavery so as to preserve national unity, and how this structure shaped party politics through the Civil War).
33. See GERALD LEONARD, THE INVENTION OF PARTY POLITICS: FEDERALISM, POPULAR SOVEREIGNTY, AND CONSTITUTIONAL DEVELOPMENT IN JACKSONIAN ILLINOIS 35-50 (2002)
34. JOEL H. SILBEY, MARTIN VAN BUREN AND THE EMERGENCE OF AMERICAN POPULAR POLITICS, at xii-xiii (2002).
35. See SIDNEY M. MILKIS, POLITICAL PARTIES AND CONSTITUTIONAL GOVERNMENT 1-12 (1999) ("[I]t is difficult to imagine how representative government could work in a large complex society like our own without party politics.").
36. See R. Shep Melnick, The Conventional Misdiagnosis: Why "Gridlock" Is Not Our Central Problem and Constitutional Revision Is Not the Solution, 94 B.U. L. REV. 767, 768 (2014) (manuscript at 2) ("[O]ur central problem is not that government 'can't get anything done' or that our institutions have become insulated from public opinion, but rather that we are doing so many things and responding to so many political demands that we are incapable of resolving the serious conflicts among them."); see also GRABER, supra note 32, at 247 (indicating that the recent financial crisis may have been the result of "a constitutional mismatch between [American] demands on government and government capacity to satisfy those demands").
37. See 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 279-382 (1998) (discussing how President Roosevelt, the New Deal Congress, and the Hughes Court created "the modern activist state")
38. Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION 237, 241-42 (Sanford Levinson ed., 1995).
39. See id. at 203-23 (detailing the reforms of the electoral process made possible by the Twelfth Amendment); RONALD FORMISANO, THE TRANSFORMATION OF POLITICAL CULTURE: MASSACHUSETTS PARTIES, 1790s-1840s, at 305-43 (1983) (describing the rise of political parties at the state level in Massachusetts, the transformation to national organizations, and their implications for representation and elections)
40. WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS OF AMERICAN POLITICS 181 (1970).
41. See WALTER DEAN BURNHAM, THE CURRENT CRISIS IN AMERICAN POLITICS 100-01 (1982) (detailing the cycle of political dysfunction, discontent, and critical electoral realignments).
42. For a particularly good set of essays, including Walter Dean Burnham's defense of realignment theory, see THE END OF REALIGNMENT? INTERPRETING AMERICAN ELECTORAL ERAS (Byron E. Shafer ed., 1991).
43. DAVID R. MAYHEW, ELECTORAL REALIGNMENTS 65 (2002).
44. KAREN ORREN & STEPHEN SKOWRONEK, THE SEARCH FOR AMERICAN POLITICAL DEVELOPMENT 108 (2004) (discussing the theory of intercurrence, according to which autonomous institutions change in regular cycles, where citizens experience dysfunction, politicians capitalize on that with messaging, and moderate reforms occur).
45. See Mark Tushnet, Constitutional Workarounds, 87 TEX. L. REV. 1499, 1514-15 (2009).
46. See generally DEMOCRACY, LIBERTY, AND PROPERTY: THE STATE CONSTITUTIONAL CONVENTIONS OF THE 1820S (Merrill D. Peterson ed., 2010) (1966) (recounting debates from the constitutional conventions that took place in Massachusetts, New York, and Virginia in the 1820s).
47. See ELAINE K. SWIFT, THE MAKING OF AN AMERICAN SENATE: RECONSTITUTTVE CHANGE IN CONGRESS, 1787-1841, at 1 (1996) (describing the original constitution of the Senate and changes to informal and semiformal Senate procedural rules that allowed the Senate to develop a more American identity, akin to that of the House of Representatives).
48. See ALBERT O. HIRSCHMANN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES 124 (1970) (rejecting the possibility that there is "some optimal mix of exit and voice").
49. For the best accounts of this time period, see DAVID M. KENNEDY, FREEDOM FROM FEAR: THE AMERICAN PEOPLE IN DEPRESSION AND WAR, 1929-1945 (1999)
50. JAMES T. PATTERSON, GRAND EXPECTATIONS: THE UNITED STATES, 1945-1971 (1996).
51. See generally JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY (4th ed. 1984) (describing the growth of the middle class caused by increases in manufacturing and demand following World War II).
52. See Mark Graber, 'No Better than They Deserve:' Dred Scott and Constitutional Democracy, 34 N. KY. L. REV. 589, 589 (2007) (quoting George Shaw).
53. See DAN T. CARTER, THE POLITICS OF RAGE: GEORGE WALLACE, THE ORIGINS OF THE NEW CONSERVATMSM, AND THE TRANSFORMATION OF AMERICAN POLITICS 82-109 (1995) (documenting the origins of southern resistance to desegregation).
54. See generally KEVIN J. MCMAHON, RECONSIDERING ROOSEVELT ON RACE: HOW THE PRESIDENCY PAVED THE ROAD TO BROWN (2004).
55. Robert H. Jackson, Back to the Constitution, 25 A.B.A. J. 745, 745 (1939).
56. MICHAEL KAMMEN, A MACHINE THAT WOULD GO OF ITSELF: THE CONSTITUTION IN AMERICAN CULTURE 381-82 (1986).
57. See generally CHARLES BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES (reprt. 1986)
58. JAMES ALLEN SMITH, THE SPIRIT OF AMERICAN GOVERNMENT: A STUDY OF THE CONSTITUTION: ITS ORIGIN, INFLUENCE AND RELATION TO DEMOCRACY (1907)
59. WOODROW WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS (Houghton, Mifflin & Co. 15th ed. 1901) (1885).
60. David Fontana, The Rise and Fall of Comparative Constitutional Law in the Postwar Era, 36 YALE J. INT'L L. 1, 22-23 (2011).
61. See id. ("[S]ome of the more notable citations to comparative constitutional law⋯ treated the foreign constitutional experience as the negative role model - the experience to avoid- and the American constitutional experience as the one to prioritize."); Richard Primus, A Brooding Omnipresence: Totalitarianism in Postwar Constitutional Thought, 106 YALE L.J. 423, 423-26 (1996) (detailing how antitotalitarian reaction to Nazism and communism influenced judicial and academic legal thought in the decades following World War II).
62. See generally MARY L. DUDZIAK, EXPORTING AMERICAN DREAMS: THURGOOD MARSHALL'S AFRICAN JOURNEY (2008)
63. John Greenwald, A Gift to All Nations, TIME, July 6, 1987, at 92 ("Of the 170 countries that exist today, more than 160 have written charters modeled directly or indirectly on the U.S. version.").
64. GEORGE ATHAN BILLIAS, AMERICAN CONSTITUTIONALISM HEARD AROUND THE WORLD, 1776-1989, at xv (2009)
65. see also David S. Law & Mila Versteeg, The Declining Influence of the United States Constitution, 87 N.Y.U. L. REV. 762, 764-66 (2012).
66. Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 YALE L.J. 153, 159 (2002).
67. Sanford Levinson, The United States and Political Dysfunction: "What Are Elections For?," 61 DRAKE L. REV. 959, 980-81 (2013) (suggesting that a constitutional convention is required to reform the Constitution so that it better serves the twenty-first century polity).
68. See William N. Eskridge, Jr. & Sanford Levinson, Introduction: Constitutional Conversations, in CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES 1, 1-2 (William N. Eskridge, Jr. & Sanford Levinson eds., 1998) (defining "constitutional stupidities" as those parts of the Constitution that are "most nonsensical and most harmful for today's polity," and suggesting the use of constitutional stupidities as indicators of the Constitution's flaws and starting points for potential reform).
69. See Akhil Reed Amar, A Constitutional Accident Waiting to Happen, in CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES, supra note 123, at 15, 15 (describing the Electoral College as "a brilliant eighteenth-century invention that makes no sense today").
70. See William Eskridge, Jr., The One Senator, One Vote Clauses, in CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES, supra note 123, at 35.
71. See Sanford Levinson, Presidential Elections and Constitutional Stupidities, in CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES, supra note 123, at 61.
72. See L.H. LaRue, Neither Force Nor Will, in CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES, supra note 123, at 57.
73. See DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995, at 289-460 (1996).
74. See, e.g., ACKERMAN, supra note 61, at 255-382 ("A complex web of doctrine, woven by two generations of judges in the long period between 1873 and 1932, was swept away in the space of a decade." Id at 256-57.). Ackerman makes a similarly transformative claim about the constitutional status of race in the Great Society. See Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1779-82 (2007).
75. See Robert L. Stem, That Commerce Which Concerns More States than One, 47 HARV. L. REV. 1335, 1338-40 (1934) (arguing that the Commerce Clause "conformed to the standard previously approved" by the Constitutional Convention as part of the Virginia Plan, a broad federal delegation, with respect to "those matters as to which the states were separately incompetent and in which national legislation was essential).
76. See Wickard v. Filburn, 317 U.S. 111, 120 (1942).
77. See Larry D. Kramer, Madison's Audience, 112 HARV. L. REV. 611, 657-61 (1999) (revealing that few of those present at the Constitutional Convention took note of Madison's arguments for expanding the republic to prevent the rise of political factions and that, far from developing a discourse consistent with the Madisonian theory, "other delegates continued to take positions and to make speeches that rested on premises at odds with Madison's theory").
78. President George Washington, Farewell Address (Sept. 19, 1796)
79. GEORGE WASHINGTON: A COLLECTION 512, 518 (W.B. Allen ed., 1988).
80. STEPHEN M. ENGEL, AMERICAN POLITICIANS CONFRONT THE COURT 131 (2011) (describing Van Buren as "the intellectual champion of the permanent party organization").
81. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), superseded by constitutional amendment, U.S. CONST, amends. XIII, XIV.
82. Abraham Lincoln, Mr. Lincoln's Reply, Fifth Debate with Stephen A. Douglas, at Galesburg, Illinois (Oct. 7, 1858), in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN, supra note 53, at 219, 232.
83. See NICOL C. RAE, THE DECLINE AND FALL OF THE LIBERAL REPUBLICANS: FROM 1952 TO THE PRESENT 25 (1989) (describing a sizeable faction of Republicans who "supported Roosevelt on the major New Deal measured which came before Congress in 1932-36")
84. Mark A. Graber, The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, and the Direction of Judicial Decision Making, 56 How. L.J. 661, 685 (2013) ("During the 1950s and 1960s, American elites in both the Republican and Democratic parties tended to support racial equality, limiting the influence of religion in public life, broad free speech rights, and providing greater protections for poor persons and persons of color suspected of crimes.").
85. See NICOL C. RAE, SOUTHERN DEMOCRATS 39-45 (1994) (chronicling Southern Democrats' rising dissatisfaction with liberal reform, which was spearheaded by their own party and liberal Warren Court decisions, beginning in the later years of the New Deal and coming to a head during the Civil Rights Movement).
86. See Wickard v. Filbum, 317 U.S. III, 120-29 (1942) (upholding a reading of the Commerce Clause granting expansive powers to Congress)
87. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 318-22 (1936) ("[T]he investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution⋯. [It is] inherently inseparable from the conception of nationality.").
88. See Chambers v. Florida, 309 U.S. 227, 241 (1940) ("[C]ourts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement.")
89. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) ("There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution⋯.").
90. See DAVID B. TRUMAN, THE GOVERNMENTAL PROCESS: POLITICAL INTERESTS AND PUBLIC OPINION 106-08 (1951) (describing the rise of association and "increasing demands upon and through the government" that occurred in the mid-twentieth century).
91. See MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM 156-59 (1991).
92. See JEFFREY K. TULIS, THE RHETORICAL PRESIDENCY 3-9 (1987) (distinguishing the modern presidency from that of nineteenth century based on its occupiers' perceived duty "to promote policy initiatives nationwide")
93. Aaron Wildavsky, The Two Presidencies, TRANSACTION, Dec. 1966, at 7, 7-8 (observing that the post-World War II Presidents rarely failed to realize their major foreign policy objectives).
94. Jack M. Balkin, The Last Days of Disco: Why the American Political System Is Dysfunctional, 94 B.U. L. REV. 1159, 1162-68 (2014)
95. See COMM. ON POLITICAL PARTIES, TOWARD A MORE RESPONSIBLE TWO-PARTY SYSTEM, in 44 AM. POL. SCI. REV. supp. (1950) (arguing for political parties that offer their members different policy objectives)
96. see also THEODORE J. LOWI, THE END OF LIBERALISM: IDEOLOGY, POLICY, AND THE CRISIS OF PUBLIC AUTHORITY, at x (1969) (deriding post-New Deal government as an oversized, formless, and impotent mass, incapable of "plan[ning] or achiev[ing] justice").
97. ROBERT A. DAHL, WHO GOVERNS?: DEMOCRACY AND POWER IN AN AMERICAN CITY 228 (2d ed. 2005).
98. DANIEL BELL, THE END OF IDEOLOGY: ON THE EXHAUSTION OF POLITICAL IDEAS IN THE FIFTIES 402-03 (rev. ed. 1962).
99. Henry M. Hart, Jr., The Supreme Court 1958 Term: Foreword: The Time Chart of the Justices, 73 HARV. L. REV. 84, 99 (1959).
100. See CONG. GLOBE, 39th Cong., 1st Sess. 74 (1865) (statement of Rep. Stevens).
101. GEORGE S. BOUTWELL, THE CONSTITUTION OF THE UNITED STATES AT THE END OF THE FIRST CENTURY 389 (1895) ("[T]he last sentence of section two of the Fourteenth Amendment is inoperative wholly⋯. There are no longer any persons living on whom the provisions of section three can operate.")
102. George David Zuckerman, A Consideration of the History and Present Status of Section 2 of the Fourteenth Amendment, 30 FORDHAM L. REV. 93, 124 (1961) ("There never has been a successful implementation of the full provisions of section 2 of the fourteenth amendment.")
103. see also Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 GEO. L.J. 259, 260 (2004) ("[N]o discriminating state lost even a single seat in the House of Representatives when Congress reapportioned itself").
104. See CHARLES W. CALHOUN, CONCEIVING A NEW REPUBLIC: THE REPUBLICAN PARTY AND THE SOUTHERN QUESTION, 1869-1900, at 1-4 (2006) (describing Republicans' failed efforts "to salvage the republican experiment in the South" when "[a]ttitudes and public concerns⋯ shifted" in the late nineteenth century)
105. STANLEY P. HIRSHSON, FAREWELL TO THE BLOODY SHIRT 17 (Quadrangle Paperback, reprt. 1968) ("Fundamentally, this book is concerned with how and why the Republican party, which after the Civil War passed numerous laws and set up many organizations to aid the Southern Negro, deserted the colored man by the 1890's.").
106. See Herbert McClosky, Consensus and Ideology in American Politics, 58 AM. POL. SCI. REV. 361, 364-66 (1964) (finding a broad consensus among "political influentials" on the values of governance that does not exist when one extends the statistical inquiry to include the general electorate).
107. See Morris P. Fiorina & Matthew S. Levendusky, Disconnected: The Political Class Versus the People, in 1 RED AND BLUE NATION?: CHARACTERISTICS AND CAUSES OF AMERICA'S POLARIZED POLITICS 49, 51-52 (Pietro S. Nivola & David W. Brady eds., 2006) (indicating that "American politics today finds a polarized political class" that is knowledgeable and ideologically driven, which is "competing for the support of a much less polarized electorate" that is less knowledgeable and "largely nonideological").
108. See Geoffrey C. Layman & Thomas M. Carsey, Party Polarization and "Conflict Extension" in the American Electorate, 46 AM. J. POL. SCI. 786-87 (2002) (describing party identifiers' extension of "party conflict" into the three main "domestic issue agendas").
109. See SARAH A. BINDER, STALEMATE: CAUSES AND CONSEQUENCES OF LEGISLATIVE GRIDLOCK 19-27 (2003) (describing the impact of party and preference polarization on political stalemate, and explaining the ideological polarization in Congress along these lines)
110. THOMAS E. MANN & NORMAN J. ORNSTEIN, THE BROKEN BRANCH: HOW CONGRESS IS FAILING AMERICA AND HOW TO GET IT BACK ON TRACK, at x (2006) ("[T]he growing ideological polarization of the parties, the transformation of intense partisanship into virtually tribal politics⋯ contributed to a climate on Capitol Hill that we found unsettling and destructive.").
111. From this Symposium, see Jack M. Beermann, The New Constitution of the United States: Do We Need One and How Would We Get One?, 94 B.U. L. REV. 711 (2014)
112. Yasmin Dawood, Democratic Dysfunction and Constitutional Design, 94 B.U. L. REV. 913 (2014)
113. Douglas Kriner & Andrew Reeves, The Electoral College and Presidential Particularism, 94 B.U. L. REV. 741 (2014)
114. Stephen Skowronek, Twentieth-Century Remedies, 94 B.U. L. REV. 795 (2014).
115. See STEPHEN L. CARTER, THE CONFIRMATION MESS: CLEANING UP THE FEDERAL APPOINTMENTS PROCESS, at ix-x (1994) (discussing the shortcomings of the modern confirmations process, particularly how that process abandons rational critique in favor of rhetorical lambasting, its failure to consider the potential in an intellectually complex public servant, and its requirement that nominees disclose their positions on controversial issues prior to confirmation)
116. MARK SILVERSTEIN, JUDICIOUS CHOICES: THE NEW POLITICS OF SUPREME COURT CONFIRMATIONS 6-7 (1994) ("The current [confirmation] process is disorderly, contentious, and unpredictable.")
117. David Savage, Roberts Urges End to Partisan Stalling, L.A. TIMES, Jan. 1, 2011, at AA2 ("[T]he Senate approved only 60 of President Obama's court nominees in the last two years. That was the lowest total for a new president in four decades.").
118. LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS 106-13 (2005) ("The partisan climate surrounding the Senate's deliberations and the candidate's ideology also play roles, and critical ones at that." Id. at 106.).
119. See HENRY J. ABRAHAM, JUSTICES, PRESIDENTS, AND SENATORS: A HISTORY OF THE U.S. SUPREME COURT APPOINTMENTS FROM WASHINGTON TO BUSH II, at 201-02 (5th ed. 2008) (recounting Chief Justice Warren's confirmation process, which was initially stalled by a few "conservative Southern Democrats" but concluded with unanimous support for his confirmation).
120. See id. at 321-22 (describing wholesale Democratic opposition to the nominee put forward by Republican President George W. Bush, resulting from both party loyalty and ideological aversion); Paul Kane & Robert Barnes, Senate Confirms Kagan as Justice, WASH. POST, Aug. 6, 2010, at A1 (reporting that Justice Kagan, nominated by Democratic President Obama, received the support of only five Republicans, while the remaining conservatives remained skeptical of her commitment to "the rule of law" (internal quotation marks omitted)).
121. GREGORY KOGER, FILIBUSTERING: A POLITICAL HISTORY OF OBSTRUCTION IN THE HOUSE AND SENATE 4-5 (2010) (claiming that "classic filibustering was a bargaining game" and providing an example of one such filibuster in which Senator La Follette and a group of like minded Senators sought to block a bill that "they considered a gift to the financial elite").
122. See HUGH DAVIS GRAHAM, THE CIVIL RIGHTS ERA: ORIGINS AND DEVELOPMENT OF NATIONAL POLICY 142-44 (1990) (recounting the mounting factors that enabled civil rights leaders to defeat the Southern Democratic filibuster, including increased popular pressure and "the superior organization of the Senate leadership").
123. See Aaron-Andrew P. Bruhl, The Senate: Out of Order?, 43 CONN. L. REV. 1041, 1043-46 (2011) (discussing the Senate's routine use of the filibuster to prevent legislative action).
124. see also LAWRENCE R. JACOBS & THEDA SKOCPOL, HEALTH CARE REFORM AND AMERICAN POLITICS 63-64 (rev. ed. 2012) (explaining that Republicans used "whatever rules were available to slow the legislative process" to thwart Democratic healthcare reform).
125. See KEITH KREHBIEL, PIVOTAL POLITICS: A THEORY OF U.S. LAWMAKING 229-36 (1998) (theorizing that the presidential veto "contributes to policy stability⋯ in instances in which the status quo is moderate⋯ and it dampens the degree of convergence to the median legislator's ideal point when the status quo lies just outside the gridlock interval on the president's side of the ideological spectrum").
126. See Stanley M. Elkins & Eric McKitrick, Youth and the Continental Vision, reprinted in ESSAYS ON THE MAKING OF THE CONSTITUTION 213, 241-45 (Leonard W. Levy ed., 2d ed. 1987)
127. see also CHRISTIAN G. FRITZ, AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA'S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR 123-24 (2008) (observing that revolutionary leaders struggled in the post-revolutionary era to maintain the elite class of leadership that they envisioned would govern the United States).
128. See JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 134-39 (1996) (acknowledging the influence of President George Washington and Benjamin Franklin on the ratification debates).
129. See James Madison, Vices of the Political System of the United States (Apr. 1787)
130. reprinted in THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON 57, 57-65 (Marvin Meyers ed., rev. ed. 1981) (enumerating the new republic's vices, many of which lay with state legislatures and their elected officials).
131. See GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 253-59 (1992) (explaining that the Federalists envisioned a federal government composed of virtuous "disinterested umpires," who were above local interests, and who "promot[ed] an exclusively public sphere of activity in government," as opposed to engaging in "interest mongering").
132. See H.W. Perry, Jr. & L.A. Powe, Jr., The Political Battle for the Constitution, 21 CONST. COMMENT., 641, 688 (2004) (describing the Warren Court as "ending the sectional nature of constitutional disputes").
133. See, e.g., Erik Eckholm, A Republican Voice with Tea Party Mantle and Intellectual Heft, N.Y. TIMES, Aug. 1, 2012, at A1.